Antiquesportfolio.com argued that due to the infringement it was
entitled to refuse to pay for work carried out by Rodney Fitch
& Company, and that it was entitled to a refund of sums already
paid to the designers. Antiquesportfolio.com also sought damages
which included a payment to new designers to cover the cost of them
altering the web site.
In siding with Antiquesportfolio.com, the court said that
although there was no express term in the contract relating to the
specific circumstances, an implied term existed whereby the web
site designers were under a duty to carry out the design work with
reasonable skill and care. This included not copying material from
a third party where that material may be subject to copyright.
Also, the court said there was an implied obligation to ensure
that work undertaken would have been fit for the purpose for which
it was commissioned. It should therefore not contain potentially
infringing material.
The case highlights the importance of making reference in a
development contract to use of third party works. In this case, the
judge accepted the existence of an implied term for the designer to
use reasonable care not to include works that were knowingly
copied.
The designer should have told Antiquesportfolio.com that copied
material had been used and should have obtained its consent to
continue with its use. Antiquesportfolio.com could then have sought
permission to use the material, otherwise it ran the risk of being
sued for copyright infringement.
Most designs and logos on the internet are subject to copyright
and possibly trade mark rights and permission must be obtained
before they can be reproduced. Copyright has no procedural
requirements for registration. So long as a piece of work is
original, or the person making it has exerted a degree of time,
skill, and labour in producing it, then the material is copyright
protected upon inception. There is no requirement to use the
copyright symbol for there to be protection. Accordingly, if the
symbol is not used, this does not mean the work is free of
copyright.
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